The first court date that a defendant will have after arrest is called a first appearance. The first appearance hearing is not a critical stage of the prosecution, and therefore a defendant is not entitled to the presence of a court appointed lawyer at the hearing. However, the 6th Amendment right to counsel does apply to a first appearance. O'Kelly v. State, 278 Ga. 564 (2004). Therefore, if a defendant wishes to exercise his right to hire counsel, the hearing must be delayed. The judge is limited to scheduling and other housekeeping matters, but the actual hearing must be reset. Uniform Magistrate Court Rule 25.1.
A defendant who is arrested based on an arrest warrant must be brought before a judge for a first appearance within 72 hours after arrest. O.C.G.A. § 17-4-26. A defendant who is arrested without a warrant must be brought before the judge within 48 hours not only for a first appearance but also for a determination of probable cause (preliminary hearing). Gerstein v. Pugh, 420 U.S. 103 (1975). Any person arrested without a warrant who is not brought before the judge within 48 hours of arrest must be released unless a warrant has been obtained within the 48 hours. O.C.G.A. § 17-4-62. The case is not dismissed. The defendant is simply released on bond. Further, failure to hold the hearing within 48 hours does not render a future conviction invalid. Chiasson v. State, 250 Ga. App. 63 (2001); State v. Cade, 184 Ga. App. 347 (1987).
At the first appearance, a magistrate court judge will inform the defendant of the charges against him and that he has a right to an attorney to defend against the charges. The judge will determine whether the defendant needs a court appointed lawyer. The judge will also tell the defendant that he has the right to a commitment hearing, also known as a preliminary hearing, and when that hearing will be held. Uniform Superior Court Rule 26.1. An arrested person who is not notified before the hearing of the time and place of the commitment hearing shall be released. O.C.G.A. 17-4-26.
The magistrate judge shall set bond unless the charge is one of those charges that only a superior court judge can give a bond. Uniform Magistrate Court Rule 25.1; Uniform Superior Court Rule 26.1.
Preliminary Hearing or Commitment Hearing
The next court date that a defendant has is the commitment hearing also called the preliminary hearing. If the defendant makes bond prior to the hearing there will not be a preliminary hearing. State v. Gilstrap, 230 Ga. App. 281 (1988); Lynn v. State, 236 Ga. App. 600 (1999); Uniform Superior Court Rule 26.1. Although a defendant arrested on a warrant must be brought before a judge within 72 hours, the preliminary hearing does not have to occur within 72 hours. Tidwell v. Paxton, 282 Ga. 641 (2007). The preliminary hearing normally takes place within two weeks of arrest. A police officer will usually testify at the hearing. Hearsay is allowed during the hearing, therefore, any alleged victim does not need to testify. In re R.B., 264 Ga. 602 (1994).
The purpose of the preliminary hearing is to determine what the facts are (according to the police) that have the defendant in jail. The magistrate judge has to determine if there is probable cause to let the case go forward. The judge is not trying to decide if the defendant is guilty or not guilty, only whether there is probable cause to let the case keep moving through the criminal justice system. State v. Middlebrooks, 236 Ga. 52 (1976). Probable cause can exist even if there is a conflict in the testimony. Further, the prosecutor does not have to present all of the evidence; only enough to find probable cause. If there is probable cause, the judge will send the case (also called bind it over) to the appropriate court system, state court for misdemeanors or superior court for felonies. The judge can add charges other than those for which the defendant was arrested. 42O.C.G.A. § 17-7-29. If the judge does not find probable cause, the case can be dismissed. If a case is dismissed the district attorney can still present the case to the grand jury and get an indictment. Wells v. Stynchcombe, 231 Ga. 199 (1973); Boyce v. State, 184 Ga. App. 578 (1988).
The benefits of a preliminary hearing include: having cases dismissed early in the process; exposing early in the process weakness in the State's case; gathering impeachment evidence; securing and preserving favorable testimony which might not be available at trial; discovering information about the prosecution's case; and setting forth arguments regarding bond or the need for a psychiatric examination. The defendant can subpoena witnesses to the preliminary hearing. O.C.G.A. § 17-7-28. The defendant can obtain a copy of the transcript from the preliminary hearing by paying the cost of the transcript, or if the defendant is indigent asking the court to have the government pay for the transcript. Uniform Superior Court Rule 26.2; Barnes v. State, 184 Ga. App. 513 (1987). The transcript can be used to impeach witnesses at a trial. If the defendant testifies at the preliminary hearing his testimony can be used to impeach him at trial.
The magistrate judge can set a bond or lower the bond at the preliminary hearing (unless the charge is one of those charges that only a superior court judge can give a bond). Often the defense attorney and the prosecutor negotiate for the prosecutor to agree (consent) to a bond in exchange for the defendant waiving his preliminary hearing. The magistrate judge then signs the consent bond order. If the case involves an offense that only a superior court judge can set bond, the defendant will not be able to get bond at the first appearance or the preliminary hearing. However, in some counties the magistrate judge will be given the authority of a superior court judge and can hear all bond motions at the preliminary hearing. The preliminary hearing is not a required step in a felony prosecution. State v. Middlebrooks, 236 Ga. 52 (1976). Thus, a defendant who is convicted will not have his conviction overturned because he did not have a preliminary hearing. While a preliminary hearing is not a required step in a felony prosecution, if a hearing is held, counsel must be provided. Hannah v. Stone, 236 Ga. 65 (1976); OCGA § 17-724. The case must be reset to get counsel. However, if a defendant does not have a lawyer at his preliminary hearing and then is convicted after trial, his conviction won't be overturned if the appeals court finds the failure to give him a lawyer for the preliminary hearing did not cause him any harm. Mitchell v. State, 173 Ga. App. 560 (1985).
A defendant who seeks on appeal to challenge his attorney's waiver of the preliminary hearing must show that he was prejudiced by the waiver. Cargill v. State, 255 Ga. 616 (1986). A defendant who is in jail and wants to assert his right to a preliminary hearing must do so before indictment by filing a habeas corpus petition. State v. Godfrey, 204 Ga. App. 58 (1992). Once an indictment is returned by the grand jury or an accusation is drafted by the district attorney, a defendant is not entitled to a preliminary hearing. Spears v. Johnson, 256 Ga. 518 (1986); Pruitt v. State, 258 Ga. 583 (1988).